Aluminum Co. of America v. Walden, 5-1788

• Decision Date: 06 April 1959
• Docket Number: No. 5-1788,5-1788
• Citation: 322 S.W.2d 696,230 Ark. 337
• Parties: ALUMINUM COMPANY OF AMERICA, Appellant, v. Mrs. Nedgie WALDEN et al., Appellees.
• Court: Arkansas Supreme Court

Page 696

322 S.W.2d 696

230 Ark. 337

ALUMINUM COMPANY OF AMERICA, Appellant, v. Mrs. Nedgie WALDEN et al., Appellees.

No. 5-1788.

Supreme Court of Arkansas.

April 6, 1959.

Rehearing Denied May 4, 1959.

Rose, Meek, House, Barron & Nash, Little Rock, O. Wendell Hall, Jr., Benton, Wright, Harrison, Lindsey & Upton, Little Rock, for appellant.

McMath, Leatherman & Woods, Little Rock, for appellees.

WARD, Justice.

This litigation was initiated by appellees, the widow and children of Ed Walden, to recover damages for his death which, as they allege, was caused by the negligence of appellant, Aluminum Company of America (hereafter referred to as Alcoa). The alleged acts of negligence on the part of Alcoa relied on by appellees will be set out later in this opinion. We deem it sufficient to set out only a brief summary of the facts and events preceding Walden's death and bearing upon the issues involved for the reason that they have twice been recounted in recent decisions of this court. See Walden v. Automobile Owners Safety Insurance Company, Ark., 311 S.W.2d 780, decided March 31, 1958, and United Steelworkers of America v. Walden, Ark., 311 S.W.2d 787, decided April 7, 1958. We will hereafter refer to the deceased as Walden.

Alcoa has for many years been extensively engaged, among other things, in mining bauxite in Saline County. Incident to these operations they have opened numerous mines or quarries and have built private roads thereto leading from the public roads nearest by. It is necessary that these private roads be substantially constructed because they are used by heavily loaded trucks in carrying the bauxite ore from the mines. When the ore is exhausted in a mine or quarry it is abandoned and another is opened at a different site. Walden was an employee of Alcoa from 1935 until March 1946, in the capacity of an Oiler Foreman. As such, it was his duty to visit the several mines in order to oil the mining equipment. From 1946 to 1948 or 1949, Walden worked for Reynolds Metals Company as an operator in one of their chemical plants in which capacity he made frequent trips in the general area of Alcoa's operations. Then Walden went with United Steelworkers of America as an International Staff Representative and served in that capacity until his death. When a labor dispute arose between a member of the Union and the employer (in this instance Reynolds Metals Co.) and preliminary efforts at settlement failed, it was Walden's duty to help conduct what is called a Fourth Step hearing. It appears that Walden's job was to make the necessary preparations for the Fourth Step hearing by securing the attendance of desired witnesses. Herbert Jarrett of Louisville, Kentucky, is employed by Reynolds as a Director of Labor Relations serving nine states including Arkansas and, representing management, he worked with Walden representing labor in conducting such hearings. Guy Bass, who lives at Benton, is Chairman of Local 333 of United Steelworkers which has jurisdiction over one of Reynolds' plants.

It seems that a Fourth Step hearing had been set for Friday, March 2, 1956, requiring witnesses who lived in the general area of the operations conducted by Alcoa and Reynolds, but on Tuesday morning, February 28, 1956, Jarrett (who had arrived in Little Rock the day before) called Walden at his office in Benton. Pursuant to this call Jarrett met Walden at his office and discussed the advisability of setting the hearing up one day, i. e. for Thursday, March 1st. However it was deemed necessary to consult Bass about any such change, but he could not be contacted until about 7:30 that evening, when the three of them drove to Little Rock. There they discussed the meeting until about midnight and decided to have it on Thursday. Bass and Walden then drove to Bass' home in Benton where they sat in Walden's car and discussed matters until about 3:00 a. m. Wednesday, February 29th. Walden then left and was not seen again until his body was found submerged in the water in Pit No. 14, one of the abandoned mines belonging to Alcoa, about 8:00 p. m. that same day. His car had been found in the water of the pit about 1:30 p. m.

Location of Pit. No. 14. The public road runs east from Benton about 7 miles to Bauxite, thence it continues easterly through the area of Alcoa's mines to small settlements in various parts of Saline County. About two and one-half miles east from Bauxite there is a private road built by Alcoa which leaves the public road and runs north some 1,880 feet to Pit No. 14 where Walden's body was found.

For convenient reference hereafter we will use the following designations: The letter A represents a portion of the public road near Bauxite; B represents the intersection where the private road leaves the public road; C represents a place on the public road east of B; and P designates the location of Pit No. 14.

Appellees' complaint predicated liability on the following allegations, in substance: (a) Alcoa failed to erect a sign at B warning travelers that a deep water-filled pit was only a short distance away, in view of the fact that the road from B to P appeared to be a public roada; (b) Alcoa failed to place the sign at B reading 'Private Road', in a conspicuous spot; (c) Alcoa failed to erect a barricade where the private road led directly into the water-filled pit; (d) Alcoa failed to drain the water from Pit No. 14, and Alcoa failed to erect a sign at B advising travelers that the private road led directly into a water-filled pit. Alcoa's answer was a general denial and that Walden's death resulted from his own negligence or that he assumed the risk.

After the introduction of testimony and numerous exhibits, the cause was submitted to the jury which returned a verdict in favor of appellees. On appeal, appellant relies on only one point for a reversal. This point, as stated by appellant, is as follows: 'Appellants only point is that its request for an instructed verdict should have been granted because there is no substantial evidence that appellant was guilty of negligence.'

Appellant's principal argument is that Walden was a trespasser, or at least only a licensee, and that it owed Walden no duty except not to injure him after becoming aware of his presence on the private road. There was no contention that appellant knew of Walden's presence on the private road on the occasion in question. We agree with appellant that if Walden was a trespasser or a licensee then no liability has been shown against Alcoa in this case and the judgment should be reversed and the cause dismissed. In the above connection the law in this state appears to be settled beyond any question. In Garrett v. Arkansas Power & Light Company, 218 Ark. 575, 237 S.W.2d 895 902, we quoted from Knight v. Farmers' & Merchants' Gin Co., 159 Ark. 423, 252 S.W. 30, the following statement:

'In all our decisions on the subject--and there are many--we have adhered to the rule that one who goes upon the premises of another as a mere licensee is in the same attitude as a trespasser so far as concerns the duty which the owner owes him for his protection; that he takes his license with its concomitant perils, and that the owner owes him no duty of protection except to do no act to cause his injury after his presence there is discovered.'

It is the contention of appellees, however, that Walden, under the facts and circumstances of this particular case, was not a trespasser when he drove upon the private road and into Pit No. 14, but that he was an implied invitee.

An array of authority leads us to agree, in principle, with the above contention of appellees. Section 367 of [230 Ark. 342] Restatement of the Law, Torts, states the applicable rule this way:

'Dangerous conditions upon Land Appearing To Be A Highway. A possessor of land who so maintains a part thereof that he knows or should know that others will reasonably believe it to be a public highway, is subject to liability for bodily harm caused to them while using such part as a highway, by his failure to exercise reasonable care to maintain it in a reasonably safe condition for travel.'

Under the above section appear these pertinent comments:

'a. One whom a possessor of land intentionally or negligently misleads into believing that part of his land is a public highway, is entitled to expect that the possessor will afford him a security similar to that which he would be entitled to expect were the land actually a highway.' (Emphasis added.)

'c. The rule stated in this Section applies not only where the possessor of land has paved a strip of his land adjoining the highway or has otherwise dealt with it so as to make it appear to be part of the highway, but also where he has so constructed a private road branching off from a public highway that he should realize that persons traveling on the highway would reasonably regard it as a continuance thereof.' (Emphasis added.)

'd. In addition, the possessor, having misled others into believing that part of his premises is a public highway, is under the same duty to them in respect to the maintenance of the rest of his land adjacent thereto and in respect to the activities conducted thereon as though such part were actually a public highway.' (Emphasis added.)

The same rule of law is stated by Prosser on Torts, 2d Edition at page 429 this way:

'Likewise, if he so maintains a part of his land that it appears to be a highway, as where he paves a strip next to the street, or gives a private way the appearance of a public one, he must use reasonable care to see that there is no danger to those who are misled into using it. It is often said in such cases that there is an implied 'invitation' to enter, but the true basis of liability seems to be the misrepresentation as to the character of the property.' (Emphasis added.)

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